Three Important Defenses for Nonpayment Cases

On behalf of McAdams Law on Thursday, September 20, 2012.

In Housing Court, pointing out technical errors in the landlord's papers in your Answer can beat the case, even when those mistakes seem unimportant. A technical victory may only be short term, but that may be enough to buy the time you need to raise the money to pay any rent due, so you can to hold onto your home.

When you get a Nonpayment Petition from your landlord, suing to evict you on claims you owe rent, the document says you must go to court to answer it within five days. That is very little time to look for a lawyer and investigate your defenses, so start working on it immediately.

An important first step in exploring possible defenses is to go to a Homes and Community Renewal office (formerly the DHCR) and ask for a certified rent history print-out from 1984 to the present. This will tell you whether the landlord registered the rent for your apartment as rent stabilized. Your apartment might be rent stabilized without being registered, or may have been registered before but no longer be rent stabilized, but either way this is critical information.

Your answer can challenge a Nonpayment Petition along three main lines:

Defective Papers. If the Rent Demand or the Petition itself was not delivered to you in exactly the right way, or they have a mistake in the name of the landlord or the tenant, these are defects that can be challenged. Similarly, if the papers say the apartment is rent stabilized, when it is really rent controlled or unregulated, or they're missing a required statement, they're defective. If any of these errors are present, pointing them out can get the case dismissed "on a technicality." The landlord is then back at square one and will try again, but it buys you time in the apartment.

Wrong Rent. If you already paid the rent in full, the rent claimed in the petition is different from what your lease states, the amount you have been paying is an overcharge, or the landlord simply refuses to accept rent - all these are "rent payment issues." Unlike defective papers, these are not merely technical defenses, but can permanently defeat the lawsuit, or result in a finding that the landlord actually owes you money. To beat the landlord's case they should be included in your answer as defenses; to win "affirmative relief" or a benefit for you, your answer must include them as counterclaims.

Conditions or Filings. If you show that your unit or the building has bad conditions or Housing Code violations, or you live in an apartment that is not properly registered under the Multiple Dwelling Law, a judge can halt eviction proceedings until repairs or necessary filings or adjustments are made, or rule that you only owe part of the full rent.

To do your best, consider these three groups of defenses. Needless to say, there are numerous legal complexities in each of these categories, so it is best to consult an experienced Tenants' lawyer for assistance in preparing your answer.

Attention New York City Tenants: Get more information on Landlord Tenant matters at the McAdams Law main site here.

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